Revitalization of Expired Homeowners Association Declarations and Covenants

Introduction
(www.FloridaJobs.org/ExpiredHOA)

In 1963, the Florida Legislature enacted the Marketable Record Title Act ("the Act"), codified as Chapter 712, Florida Statutes. The Act was intended to simplify title searches by extinguishing old title defects and other recorded issues affecting title to real property after 30 years, except for certain matters (see Section 712.03, Florida Statutes - Exceptions to marketability).

An unanticipated consequence of the Act was that it extinguished the covenants of some planned communities, which suddenly found they had lost their legal authority to collect assessments and enforce the covenants. Since then, the Florida Legislature has amended the statutes to provide both a process to preserve the covenants before they are extinguished by the Act, and a process to reinstate them if they have already been extinguished or have expired.

Applicable Statutes

• Section 712.11, Florida Statutes (allows nonmandatory homeowners associations to use the covenant revitalization process in Chapter 720, Part III, Florida Statutes)
• Chapter 720, Part I, Florida Statutes: Homeowners' Associations - General Provisions
• Chapter 720, Part III, Florida Statutes: Homeowners' Associations - Covenant Revitalization

Revitalizing Expired / Extinguished Homeowner Association Declarations of Covenants

Chapter 720, Part III, Florida Statutes, creates a mechanism to revive / reinstate / revitalize (these terms are all used to mean the same thing) a declaration of covenants that has ceased to govern some or all of the parcels in a subdivision. Briefly, the process includes the following steps:

1. Parcel owners within a community must create an organizing committee composed of not less than three community members.
2. The organizing committee must prepare the declaration of covenants and, if necessary, updated governing documents for the homeowners association, which must then be approved by a majority of affected parcel owners.
3. Next, the committee must send the proposed revived declaration and homeowners association governing documents to FloridaCommerce at the following address:
   • FloridaCommerce
   • Attn: Division of Community Development
   • 107 East Madison Street, MSC 160
   • Tallahassee, Florida 32399-4120
4. FloridaCommerce does not accept electronic submissions to the revitalization process. All submissions must be submitted in hard copy paper form.
5. Due to the FloridaCommerce's Division of Community Development retention policy, the revitalization submissions are not returned. The retention policy requires the physical copy of the submission to be maintain for 90 days after a determination has been rendered. Please retain a copy of the submission for filing purposes.
6. FloridaCommerce has 60 days to determine whether the documents comply with the requirements of Chapter 720, Part III, Florida Statutes, and issue a letter determination approving or denying the requested revitalization. It is not uncommon for FloridaCommerce to complete its review and issue a letter approval or denial before the sixtieth day.
7. If FloridaCommerce approves the proposed revitalized declaration and homeowners association governing documents, the declaration of covenants, articles of incorporation and bylaws of the homeowners association, the FloridaCommerce determination letter of approval, and a legal description of each affected parcel must be recorded with the Clerk of the Circuit Court in the county where the affected parcels are located within 30 days after the organizing committee receives FloridaCommerce's approval. The articles of incorporation must also be filed with the Department of State if they have not been previously filed. Immediately after recording, the organizing committee must provide copies of the recorded documents to the owners of all affected parcels.

Limited Role of FloridaCommerce

As noted above, FloridaCommerce's role with regard to homeowners association covenants is limited to deciding whether documents proposing to revitalize expired/extinguished covenants that are submitted to FloridaCommerce by an organizing committee comply with the requirements in Chapter 720, Part III, Florida Statutes. FloridaCommerce has no authority to:

• Extend the duration of homeowners association covenants that have not expired,
• Deny approval of proposed revitalized covenants because of a dispute between a homeowners association and one or more of its members, including disputes in litigation,
• Decide whether any of the lots in a subdivision are exempt from revitalized covenants,
• Regulate homeowners associations,
• Resolve complaints about homeowners associations, or
• Provide legal advice.

If you need legal advice in connection with proposed revitalized homeowners association declarations, you may contact The Florida Bar's Lawyer Referral Service at 1-800-342-8011, Monday through Friday, from 8:00 a.m. to 5:30 p.m. Eastern time, or through its website (The Florida Bar). The Florida Bar can provide you the names of attorneys in your area who may be able to assist you.

Frequently Asked Questions

What is Meant by "Verified Copies" and "Affidavits"

Part III of Chapter 720, Florida Statutes, states that "verified copies" and "affidavits" must be submitted to FloridaCommerce as part of the covenant revitalization process.

Verified Copies

A "verified copy" means that someone has sworn under oath and in the presence of a notary public or other officer legally authorized to administer oaths that the copy is a true and accurate copy of the original document. When verified copies are required, a notarized letter from a member of the organizing committee or an officer of the homeowners' association may be attached to the copies as verification that they are accurate copies. The letter should say that the person signing it verifies that the documents attached to the letter are accurate (or true and correct, or exact) copies of the original documents. If the documents are not attached to the letter, the letter must identify the specific documents to which it refers. Copies of the association's governing documents that have been obtained from the official records of the county where the subdivision is located and have been certified as accurate by the Clerk of Court are also acceptable.

Affidavits

An "affidavit" is a written statement confirmed by the oath or affirmation of the person making it (the affiant), taken before a person having authority to administer such an oath or affirmation. In other words, it is a written statement that is signed and sworn to be true in the presence of a notary public or other official who is legally authorized to administer oaths. It must be signed by the person making it, and be signed by and bear the original stamp or seal of the notary/official.

How Do I Obtain Copies of My Homeowners Association Governing Documents and Covenants?

The governing documents for a subdivision and homeowners association consist of the declaration of covenants, the articles of incorporation, and the bylaws. The declaration of covenants for a subdivision is usually recorded in the Official Records of the Clerk of the Circuit Court for the county in which the subdivision is located. Copies of the Articles of Incorporation and bylaws of the homeowners association can be obtained from the Florida Department of State, Division of Corporations. Copies of the governing documents may also be obtained directly from the homeowners association.

Does the State of Florida Regulate Homeowners Associations?

No. Homeowners associations are required to comply with applicable Florida Statutes. However, they are not regulated by any state agency.

Who Handles Disputes / Complaints about Homeowners Associations?

Under Section 720.311, Florida Statutes, the Department of Business and Professional Regulation offers a dispute resolution program for some types of disputes between a homeowners association and parcel owners.

• Florida Department of Business and Professional Regulation, Condominiums, Timeshares, and Mobile Homes - Homeowners' Associations

Additional Questions

If you have a question about expired or extinguished homeowners' association covenants or revitalizing expired or extinguished homeowners association covenants and you did not find an answer above, please Contact Us About Revitalizing Expired Covenants.